Oleh: Rudy | September 8, 2007

Local Autonomy Guarantee in 1945 Constitution

The original 1945 Constitution of the RI had Article 18 on local administration, which provided that “the division of the territory of Indonesia into large regions and small regions with administrative organizations is stipulated under law that takes into account and determine to consider the principle of consultations at state administrative organizations as well as inherent rights of areas with distinct characteristics.” The provisions of Article 18 are generally interpreted as basis idea of decentralization

 

There are four statesmen who had great influence to the constitution: Soekarno, Hatta, Yamin, and Soepomo. They made the critical contributions to the creation of the Indonesian 1945 Constitution. Soepomo and Yamin were famous as legal experts at that time, influenced by the Germany law tradition through their education in law school, Soepomo himself got his post graduate law education from Netherlands. Soepomo and Yamin, among the four, can be said the main architect of 1945 Indonesian Constitution. Even though had his education in Netherlands, Hatta was a liberalist and he was influenced mainly by United States Constitution; he made famous argumentation in the Constitution Convention on citizen right guarantee in the constitution. Soekarno was pure nationalist; his view was greatly influenced by nationalist movement leader Dr. Sun Yat Sen and constitution in newly independence state in Asia at that time.

 

The founding fathers who draft the constitution were conscious with the decentralization right as the indigenous right of the regions in archipelago. Their idea however, different from that in France where the intent was to break down traditional local autonomy but it was connected to the desire to respect the old customs and neighborhood solidarity. Their intentions reflected in the constitution convention just before the declaration of independence. The determination to guarantee decentralization was an important part in the Indonesia debate on the Indonesian 1945 Constitution. However, there were wide differences arguments about the nature and degree of the decentralization to be achieved.

 

Soepomo who was the main architect of the constitution explained his thought regarding local government and local right, “Thus in Indonesia State based on integrality idea, each community and region which has distinguished characteristic will have its own legal position as an integral part of Indonesia State. Distribution of power between central government and local government will be based on principle relating with time, place and matters… Then in a big country with many big islands like Indonesia, many authorities shall be administered by local government” (Bahar, Kusuma and Hudawati, eds, 1995).

 

In the Preparatory Committee for Indonesian Independence, Soepomo explained further his idea, “I truly believe that regions shall be given wide range of rights to administer their regions at their own initiative for their interest, but with understanding that the regions are parts of Indonesian State; regions needs and interests shall be acknowledged within the legal framework that guarantees the devolution of authorities to administer their own affairs” (Bahar, Kusuma and Hudawati, eds, 1995). However, Soepomo did not agree if the details of decentralization principle should be included in the 1945 Constitution, “The Council shall accept the basic principle of regions right, but I do not think that the devolution of the authority shall be included in our constitution instead of in specific law regarding local government” (Bahar, Kusuma and Hudawati, eds, 1995). He understood that the local rights principle in the form local autonomy should be acknowledged in the 1945 Constitution but refused further idea to put more details of deconcentration and decentralization principle in the constitution.

 

Meanwhile Yamin in BPUPKI meeting in July 11, 1945, expressed his opinion based on Germany Constitution that deconcentration and decentralization can be implemented not only in Federal Indonesia, but also its principle can be implemented in the Unitary State of Indonesia. Yamin further explained, “It is better for us to leave Federalism and shall only form Unitary State with the regions right within and throw away all centralization and bureaucracy form… Thus, I truly believe that Indonesian Constitution shall be formed based on Unitary State Principle and establishing all requisite for regions rights. Distribution of power in the central government itself and distribution of power between Central Government and Local Government shall be regulated by the justice and wisdom so that the regions can exercise their original right” (Bahar, Kusuma and Hudawati, eds, 1995).

 

Decentralization as right in Indonesian Constitution obviously has become national consensus as fundamental right. Benyamin Hoessein stated, “The existence of decentralization in Indonesia is a national consensus, in all constitution (1945 constitution, Indonesian Federal Constitution 1949, and 1950 constitution), there is always provision for decentralization as fundamental right” (Hoessein, 2002). However its existence is very vulnerable by the historical and legal interpretation of implementing it within the unitary state perspective. Centralization tendency occurred in the first place when comes to the option of unity and respecting the local rights in the form of local autonomy.

 

Since the passage of Law 22 Year 1999, the Constitution has been amended to include the principles of Law 22 Year 1999 and other changes that reinforce decentralization. The second amendment to the constitution included a clause that grants “as broad as possible autonomy” to local governments. The third amendment envisages a Local Representatives of Parliament (DPD) with the right to propose and review legislation affecting the regions, including the budget and tax legislation.


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